On this Independence Day I gave some reflection to the intentions of our founding fathers, and how that relates to our processes of elections and the innovations we should strive for to ensure accuracy, transparency, verification, and security. And as I thought about this more while gazing out at one of the world’s most precious natural resource treasures and typing this post, it occurred to me that innovation in elections systems is largely around the processes and methods more than any discrete apparatus.
That’s when the old recovering IP lawyer in me had an “ah ha” moment. And that’s what this long-winded post is about—something that actually should matter to you, a reader of this forum about our on-going effort to make elections and voting technology critical democracy infrastructure.

You see, in America, innovation has long been catalyzed by intellectual property law, specifically patents.

And as you probably also know, patent law is going through major reform efforts in Congress as you read this. Now here is what you may have missed, which in my reflecting on this Fourth of July holiday, the efforts of the TrustTheVote Project, and innovations in voting technology, dawned on me: there is a bad ingredient to the current patent reform legislation that threatens to not only undermine the very foundations on which patent law is used to catalyze innovation, but equally has the potential to undermine some very basic ideals our founding fathers had in mind as this nation was born. Bear with me while I unravel this for you; I think it will grab your attention.

So it starts with Members of Congress debating patent reform through the America Invents Act (H.R. 1249). You see, few may be aware of the role that business method patents (BMPs) play in the political process, especially during elections. BMPs have been used to protect innovations designed to improve the operation of the political process. And it is not unreasonable to assume that the TrustTheVote Project itself is working on innovations that should well qualify for patent protection resulting in patents we would assign ownership in to the general public. Weakening the protection for such innovations may in turn reduce the motivation for companies and individuals to continue innovating in these technologies. And it certainly could impact our work as well. But this is exactly what Section 18 of H.R.1249, the America Invents Act of 2011, as currently drafted would likely do.

There is a long history of inventors using BMPs to protect their innovations related to voting systems. As such systems have developed, from paper voting, to electronic voting, to on-line voting, companies both large and small have continued to innovate, and to protect their new technologies via the patent system, often through the use of BMPs. Let’s look at just two major areas.

Electronic Voting Systems - it is estimated that between 20% and 30% of American voters now cast their ballots electronically, chiefly via Direct Recording Electronic (DRE) systems. Yet these systems have encountered many problems related to their ability to record votes accurately, verifiably, and securely. In effort to remedy these problems (but largely to no demonstrative gain), companies have developed technologies designed to overcome these shortcomings, and have protected these technologies with a series of patents, many of which are classed as BMPs. Organizations with numerous BMPs related to improving electronic voting systems include large companies such as IBM, Accenture and Pitney Bowes, and smaller specialist companies such as Hart InterCivic, Avante International and Smartmatic.

Internet Voting Systems – in DRE systems, voters typically have to be physically present at a polling station in order to cast their ballots. The next logical progression is for voters to cast their ballots remotely, for example via the Internet. For reasons repeatedly explained here and elsewhere, this is just not a good idea given today’s “Internet.” But in any event, such ill-advised efforts require a whole new level of network security, in order to ensure that the votes are recorded both accurately and in a verifiable fashion (both being extremely difficult to do, and its unclear any system exists patented or not that can do so, but bear with me for the sake of argument). A search of the patents in this area, however, reveals that companies such as Accenture, Hart InterCivic, Scytl, and Avante have BMPs describing so-called Internet voting. These BMPs sit alongside their earlier BMPs covering DRE systems, as these companies develop successive generations of voting technology.

In short, Companies are continuing to seek patent protections for innovations in this sector and business methods continue to be a vehicle for so doing.

Section 18 of H.R.1249, the America Invents Act of 2011, aims to give one special interest—banks—a “get out of jail card.” As I read it, the provision does this: If you sue a bank for infringement of a business method patent the bank can stay the court litigation and take your patent to the USPTO for a special post-grant review or PGR process. If the Bank loses the first round at the office they have an automatic appeal to the board in the office. If they lose they have another automatic appeal to the Court of Appeals for the Federal Circuit (CAFC), the sole circuit or appeals court for patent cases. This process takes between 4-7 years based on the existing reexamination systems at the office. This process is special in that the bank can bring in additional forms of prior art not permitted for other reexamination systems.

There is a good reason why the range of prior art that can be used in court to challenge a patent is not available in the office. A judge, jury, rules of evidence, cross-examination and other time-tested features of court do not exist at the Patent and Trademark Office. A patent examiner does not have the experience, procedures, institutional knowledge or time to ascertain the veracity or fraud of the prior art. More importantly, they do not have the resources to deal with the increased volume of art. Worse, Section 18 can be conducted regardless of whether the patent has already been deemed valid in a prior proceeding.

And on this Independence Day Holiday, it occurs to me this violates separation of powers and should be unconstitutional.

Before I explain how I can envision this impacting what we’re doing, let me state that I will not delve into the debate over BMPs because it devolves into a religious war, and one that I as both a computer scientist and an IP Lawyer have actually shifted view points from on side to the other over the years. But suffice it to say that there are examples of useful business method patents that would be eliminated by Section 18 of the patent reform legislation winding its way through Congress. We are all very familiar with one example: SSL. Indeed, secure sockets layer is comprised of two BMPs. Everyone in the world, each day, touches this patented innovation. If Section 18 were law in 1995 then Visa and Mastercard with their SET proposal could have stalled Netscape and SSL in the USPTO for many years. Microsoft and CommerceNet with SHTTP could have done the same. The world would be worse off with competing security protocols. Ecommerce itself may not have taken off at all; at the very least its growth would have been stunted.

It is worth noting that since about year 2000 the U.S.P.T.O has employed a "second pair of eyes" process to examine BMP applications twice. Moreover, given the public acrimony over BMPs, the U.S.P.T.O is very slow to grant BMPs and the allowance rate is 20% lower than other art areas. And recently the Supreme Court in their Bilski decision affirmed the patentability of BMPs.

Yet, in spite of the acrimony and higher threshold to get a BMP, many companies large and small innovate and invest in BMPs. The top 20 owners of BMPs are Fortune 100 companies and or respectable startups. Non-practicing entities comprise a very small portion of the ownership pool of BMPs. And in considering the innovations resident in the open source elections technology framework we’re developing, we too may find ourselves in the middle of the BMP and Section 18 crossfire.

The challenge is, as a non-profit (pending 501.c.3) organization, we cannot and do not engage in the political process of legislation or lobbying. Yet, we’re wary of where this is going, I think you should be too. You see, policy makers don't often have the time to consume, absorb and digest the data. They prefer anecdotes, headline grabbing stories, one-page summaries, and talking points.

So let me turn to our thinking about BMPs and the impact of Section 18.

As mentioned above, without debating the basis for BMPs we at the TrustTheVote Project have come to accept that they are an essential part of technology IP. One reason is that the scope for IT innovation far exceeds the scope for inventing new
technology, and includes innovation in the use of existing technology for new purposes. That's been increasingly true for some 20 years, with the scope of the online world coming to encompass so many areas of human activity. One of the more recent advances is the use of IT innovations for public benefit. I'll explain that in terms of elections and political activity, but first let me give a general idea and one specific existing example.

In our experience with IT IP, a BMP can be used as a way to make a claim that "X has been used for many things before, but not in the area of Y; here is a way to use X for a particular purpose in the area of Y; this enables a new human activity Z." Now, I could forgo that claim and limit myself to a claim about Y-inspired extension of X that might be a sufficiently significant extension to warrant a patent for a technical innovation; or it might not.

If I limited myself that way, then another party could claim the innovation of using that new method for a particular purpose Z. So in general, I want to claim both, to protect the right to use X in Y for Z.

Here’s a big idea: "Protect" in the public benefit world means "anyone can do so, not limited by a private or for profit IP holder." That applies whether or not my extension of prior X is sufficiently innovative by itself.

As an example of this idea, let’s return to SSL, the subject of very well known and high quality BMPs. When SSL was invented, the use of cryptography for communication security was already well established, including the use of digital certificates to establish (a chain of) trust in the identity of parties communicating. In fact, there were many examples of cryptographic protocols and communication protocols. So for X, let's say "use of cryptographic protocols and communication protocols together for communication with security properties."

Now, SSL as a protocol may well have been sufficiently innovative to warrant patents of algorithms. But whether or not that was true, SSL was used for several purposes, including a particular kind of communication in which one party trusts a
third to vouch for the second party's identity as being sufficiently established for a financial transaction. That's Y. Z is "digital commerce" meaning financial transactions performed as part of exchange in which one party pays another party for goods and services – including digital goods and digital services. Without X used for Y, digital commerce wouldn't exist, and many forms of digital services and digital goods simply would not be provided. With X used for Y, Z is enabled for the first time. And I view Z -- digital commerce -- as a major public benefit, even if it was primarily for private for-profit commercial transactions.

The public benefit is a larger economy with the addition of digital commerce.

So far so good, but let's revisit the value of the BMP. If it didn't exist, the holders of patents for X could effectively block Z, or prevent intermediation and insert themselves into every use of X in Y for Z or X in A for B -- any use. For example, IBM holds many patents on cryptographic protocols. I don't know if those protocols and patents were sufficiently broad to cover the SSL protocol as an algorithm or apparatus. But if that were so, and BMPs didn't exist, then IBM could have insisted that it be a party to every digital commerce transaction, only allowing transaction services by parties that made payments to IBM on terms dictated by IBM. Any other parties would be barred from digital commerce. Of course, that public benefit may be a matter of opinion on which many people would differ.

In elections and politics, public benefit may be clearer.

For a first example, consider technical innovations for online voter registration. Such innovations might include the use of a "forms wizard" to help people follow complicated rules for filling out voter registration forms; digital means for capturing a signature for the form; digital transmission of the form itself, or its data; and there are more. All these techniques have been invented before and used in other areas of human endeavor. Adapting them for use in voter registration is probably not an adaption that qualifies as an innovation. But if one wants to ensure that the public be able to use IT implementations of online voter registration, a BMP can cover the use of forms wizards (or other X) for online voter registration (Y) to enable more rapid and more widespread ability of citizens to vote (Z). Many people would definitely regard that as a public benefit. The BMP protects that benefit when the BMP holder permits anyone to use the business process, barring a patent holder for X (the specific IT technique) from claiming that online VR implementations infringe their patent.

I don't know who, if anyone, holds a patent relevant to the technology of the types of innovation in online VR that I refer to here. However, I suspect that many would regard it as a public detriment for citizens to have to pay a for-profit company for the right to use an online VR service; or for local or state governments to have to pay for privilege of operating such a service.

Other examples lie in the activities around political campaigns to form communities of supporters, organize volunteers, raise money, etc. The use of social media and other online technology has and I expect will continue to increase in use, enabling more citizens to more easily participate in the political process. As in elections technology, such innovation is often the application of established technology for new purpose.

BMPs can protect the right of political organizations to use such established technology. I can easily imagine a PAC or other issues-based political organization building a membership organization that includes online interaction with members, including gaining and retaining credit card information for future contributions to the organization, or directly to a candidate or campaign. If I were a member of such an organization, I might expect to get an email about a new set of candidate reviews for candidates in an upcoming election. I could go to the organization's web site and read up on candidates. I could choose to make a donation directly to the candidate's campaign, immediately, with a single click of a "give $100" button in the candidate review.

Suppose that there were a private company with a patent on making payment in digital commerce using a similar method. Without a BMP for the process of a citizen contributing to a campaign as part of a Web session with a web site of an issues based voluntary membership association, that patent holder could insist that it be the sole conduit of such contributions. I suspect most people would view it as a public detriment to either pay a for-profit company for the privilege of a quick and easy campaign contribution, or use a more cumbersome and error prone method for free.

Worse, one could imagine selective enforcement of the patent, or selectively preferential licensing agreements, to make the quick and easy contribution method available only to political campaigns that the patent holder favored.

The same selective approach could be applied to any part of the political process. Back to voter registration, it's possible that a patent holder would choose to license its innovations selectively, only to those local election officials in locales where the majority of unregistered voters are perceived as friendly to the politics of the patent holder.

A selective approach could also be applied for disputes. For example, if a financial transactions company were able to stop a political campaign for collecting online contributions in a certain manner, during the time in which the dispute is resolved. If the time frame stretches long enough, it doesn't matter if the campaign wins the dispute—the election will already be over and the opportunity to raise and use funds will be gone.

And these types of scenarios could fit pretty much any use of social media technology, where a patent holder of a purely technical patent could assert the right to constrain the use of the technique in any field of human activity, including elections or politics.

These examples may be fanciful, or not based on a real scenario where an election-relevant or politics-relevant technology-using process is the subject of a BMP that involves a particular use of a particular underlying technology for enabling or automating the process. But I believe that the general benefit of BMPs would apply to real cases.

This may be a new idea—organizations with a public-benefit motivation wanting to ensure general use of technology-enabled innovations in electoral or political processes, rather than trying to control or reserve or profit from BMPs. And it is certainly not what BMPs might have been intended for. But I believe that BMPs could be used—and for all I know are already being used—for electoral or political
processes. It would be a shame, and a public detriment, if BMPs became less useful, either in general, or less useful in disputes with a particular class of organizations. This might be counter intuitive, but as we see the growth of digital democracy, open government, online activism, and the like, it shouldn't come as a surprise that these new forms of technology-enabled human activity also create new uses for pre-existing IP protections that pre-date the existence of these evolving activities.

Setting aside the efficacy of BMPs and the related religious debates, I bet we can all agree that without BMPs, Goliath—IBM in my perhaps fanciful example above—can block the public, especially the little guy. Section 18 in the patent bill gives banks a new tool, unique for banks, to stop David from getting their idea to the market. And this troubles me for it moves us toward that proverbial slippery slope.

At the end of the day, Section 18 of H.R.1249, the America Invents Act of 2011 is frankly, akin to a government regime not granting a permit to open a business simply because one is from the wrong caste or religion or political party... and that's not the government regime of this nation, who independence we celebrate today. Yet it appears some special interests in patent reform may have an otherwise misguided view to the contrary.